Citation NR: 9725258
Decision Date: 07/22/97 Archive Date: 08/04/97
DOCKET NO. 96-20 718 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for cataracts as secondary
to exposure to ionizing radiation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
David L. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from July 1956 to April 1959.
This appeal is before the Board of Veterans’ Appeals (Board)
from a June 1995 determination of the Phoenix, Arizona,
Department of Veterans Affairs (VA) Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to service
connection for cataracts secondary to radiation exposure.
The veteran contends that he was exposed to ionizing
radiation during nuclear testing for Operation PLUMBBOB while
stationed at Camp Desert Rock. The veteran argues that his
cataracts are the result of his radiation exposure.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for
cataracts as secondary to exposure to ionizing radiation.
FINDING OF FACT
Cataracts are not causally related to any in-service
radiation exposure.
CONCLUSION OF LAW
Cataracts, claimed as due to exposure to ionizing radiation,
were not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1131, 5107(a) (West 1991); 38 C.F.R.
§§ 3.303(d), 3.311 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Background
The Board notes that there is information on file from the
National Personnel Records Center that the veteran’s service
medical records may have been destroyed by fire in 1973.
Despite attempts by the RO to obtain outstanding service
medical records, the available service medical evidence
consists of an October 1958 clinical report showing treatment
for an acute right ankle sprain. In cases where a veteran’s
service medical records are presumably destroyed, the VA has
a heightened duty to explain its findings and conclusions.
O’Hare v. Derwinski, 1 Vet.App. 365 (1991).
VA outpatient treatment reports show that the veteran first
sought treatment for complaints of blindness in January 1991.
The veteran reported blindness in the left eye for four
years, and that the right eye had been going blind for one
year. A subsequent outpatient treatment report shows a
diagnosis of mature cataract of the left eye and posterior
subcapsular cataract of the right eye. A February 1991
inpatient treatment report shows that the veteran underwent
an extracapsular extraction with posterior chamber lens
implantation. The record shows follow-up treatment at the VA
eye clinic.
An April 1991 VA eye clinic report shows that the veteran had
significant posterior capsular opacification of the left eye
with symptoms of monocular diplopia. An ophthalmology report
from the University of Arizona Health Sciences Center shows
that the veteran underwent laser treatment of the left eye to
remove an opacified posterior capsule.
The record shows continued treatment at the VA eye clinic.
An October 1991 VA inpatient treatment report shows that the
veteran underwent a phacoemulsification with posterior
chamber intraocular lens implantation for the right eye
cataract. The veteran was seen on several occasions
following the October 1991 procedure.
The veteran underwent an October 1993 VA examination in
connection with his claim that posterior subscapular
cataracts were due to ionizing radiation. The examiner noted
that the veteran had subscapular cataracts removed from both
eyes. Corrected vision in both eyes was noted to be 20/20.
The examiner observed that the eyes were externally normal
with well-healed superior limbal surgical scars. The
examiner noted that the corneas were clear, and that the
veteran had a peripheral iridectomy and some anterior
synechia at one o’clock in the left eye with some ovalling of
the pupil. The examiner also noted the posterior chamber
intraocular lens in each eye with intact posterior capsule of
the right eye and capsulotomy of the left eye. The
impression was bilateral pseudophakia.
The record shows that the RO requested the Defense Nuclear
Agency (DNA) to confirm the veteran’s presence and nature of
duties at the nuclear test site and the veteran’s recorded
levels of radiation exposure in February and May 1994. A
June 1994 letter from the DNA confirmed the veteran’s
involvement with U.S. atmospheric nuclear testing. The DNA
provided the RO with radiation dose reconstruction
information in January 1995. The DNA confirmed the veteran’s
involvement with Operation PLUMBBOB while the veteran was
stationed at Camp Desert Rock. The veteran’s radiation
dosage was calculated on the basis of film badges worn and by
reconstruction. The DNA calculated a total exposure to
radiation for the veteran of 0.0 rem of neutron radiation and
0.1 rem of gamma radiation.
The RO requested the VA Director of Compensation and Pension
Service to request a dose estimate from the VA Undersecretary
for Health in April 1995. The Assistant Chief Medical
Director for Public Health and Environmental Hazards
evaluated the relationship between the veteran’s exposure to
radiation and his disability. In June 1995 the Director
reported that it is unlikely that the veteran’s cataracts
could be attributed to exposure to ionizing radiation during
service. The Director used the DNA’s estimate that the
veteran was exposed to ionizing radiation during service of
0.1 rem of gamma radiation with an upper bound of 0.2 rem.
Citing the CIRRPC Scientific Panel Report No. 6, 1988, the
Director stated that the panel does not provide screening
doses for cataracts. She cited the Health Effects of
Exposure to Low Levels of Ionizing Radiation (BEIR V) 1990,
page 363, for the proposition that threshold dose of
radiation resulting in lens opacities in atomic bomb
survivors was about 60 to 150 rads while the threshold for
persons treated with x-rays to the eye is about 200 to 500
rads. Based on this information, the Director concluded that
it was unlikely that the veteran’s cataracts was attributable
to ionizing radiation during service. The Director of the VA
Compensation and Pension Service reviewed the medical opinion
and found in June 1995 that there was no reasonable
possibility that the veteran’s disabilities were the results
of such exposure.
The veteran testified at an April 1996 hearing before the RO.
The veteran reported that he did not wear glasses until just
prior to his eye surgery. The veteran testified that he did
not seek treatment for his eyes until he could not see out of
the right eye and had been going blind in the left eye. The
veteran reported that he was told he had cataracts some time
in the mid to late 1980s when he bought glasses. The veteran
indicated that the first treatment for his eyes was obtained
at the VA.
Analysis
The veteran’s claim of entitlement to service connection for
cataracts as secondary to exposure to ionizing radiation is
well grounded within the meaning of 38 U.S.C.A. § 5107(a).
The record shows that the veteran had bilateral posterior
subcapsular cataracts and bilateral pseudophakia, a radiation
dose estimate is available for the veteran, and bilateral
posterior subcapsular cataracts is a radiogenic disease as
defined in 38 C.F.R. § 3.311, thus providing a potential link
between the radiation exposure and the current disability.
The record shows that the RO has requested dose information
from the Department of Defense, and a medical opinion also
has been obtained from the VA Undersecretary for Health
pursuant to 38 C.F.R. § 3.311. The Board is satisfied that
all relevant facts have been properly developed and no
further assistance to the veteran with respect to his claim
is required to comply with § 5107(a).
The basic statutory provision and regulation concerning
service connection state that service connection may be
granted for a disability resulting from personal injury
suffered or disease contracted in line of duty or for
aggravation of preexisting injury suffered or disease
contracted in line of duty. 38 U.S.C.A. § 1131 (West 1991);
38 C.F.R. § 3.303 (1996). The basic regulations also provide
that service connection may be granted for any disease
diagnosed after discharge when all of the evidence including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection for disability that is claimed to be
attributable to exposure to ionizing radiation during service
can be demonstrated by three different methods. See Rucker
v. Brown, 10 Vet.App. 67, 71 (1997). There are certain types
of cancer that are presumptively service connected specific
to radiation-exposed veterans. 38 U.S.C.A. § 1112(c);
38 C.F.R. § 3.309(d). Second, “radiogenic diseases” may be
service connected pursuant to 38 C.F.R. § 3.311. Third,
service connection may be granted under 38 C.F.R. § 3.303(d)
when it is established that the disease diagnosed after
discharge is the result of exposure to ionizing radiation
during active service. See Combee v. Brown, 34 F.3d 1039
(Fed.Cir. 1994).
With respect to the first method, the Board notes that the
provisions of § 3.309(d) limit the diseases to those
specified in § 3.309(d)(2). In the instant case, it is not
necessary to discuss whether the provisions of § 3.309(d)
could have any bearing on the veteran’s claim, since
bilateral posterior subcapsular cataracts, at issue in this
case, is not one of the diseases subject to presumptive
service connection under § 3.309(d)(2).
The provisions of 38 C.F.R. § 3.311 provide for development
of claims based on a contention of radiation exposure during
active service and post service development of a radiogenic
disease. Section 3.311 essentially states that, in all
claims in which it is established that a radiogenic disease
first became manifest after service, and it is contended that
the disease resulted from radiation exposure, a dose
assessment will be made. The regulation provides a list of
recognized radiogenic diseases under subsection 3.311(b)(2),
and the regulatory time period when the diseases must become
manifest. 38 C.F.R. § 3.311(b)(5). In addition,
§ 3.311(b)(4) provides that, even if the claimed disease is
not one that is already recognized as radiogenic by
§ 3.311(b)(2), the claim will still be considered, or
developed, under § 3.311 if the veteran cites or submits
competent scientific or medical evidence that the claimed
disease is radiogenic.
In the instant case, the Board finds that the preponderance
of the evidence is against the veteran’s claim as to its
consideration and development under 38 C.F.R. § 3.311. The
probative medical evidence shows that the veteran had an
extracapsular extraction with posterior chamber lens
implantation performed in February 1991, and a
phacoemulsification with posterior chamber intraocular lens
implantation performed on the right eye in October 1991. The
veteran specifically alleged that he was exposed to radiation
during Operation PLUMBBOB, and the report from the DNA
confirms this fact. Notwithstanding the fact that posterior
subcapsular cataracts are listed as a radiogenic disease
under § 3.311(b)(2)(xvi), no competent, medical, or
scientific evidence linking the veteran’s diagnosis to the
claimed in-service exposure to radiation is of record. The
Assistant Chief Medical Director for Public Health and
Environmental Hazards evaluated the relationship between the
veteran’s exposure to radiation and his disability and
reported that it is unlikely that the veteran’s posterior
subcapsular cataracts can be attributed to exposure to
ionizing radiation in service. The Director of the VA
Compensation and Pension Service found in June 1995 that
there is no reasonable possibility that the veteran’s
disability the result of such exposure.
The veteran’s claim essentially rests on his and his
representative’s assertions that his eye disorder is directly
related to claimed in-service radiation exposure. However,
the veteran and his representative, as laypersons without
medical knowledge, are not competent to offer opinions or to
make such conclusions regarding medical causation. King v.
Brown, 5 Vet.App. 19, 21 (1993); Grottveit, 5 Vet.App. at 93;
Espiritu, 2 Vet.App. 492, 495. Neither is the Board
competent to make such a determination without supporting
medical or scientific evidence. Id. There is no competent,
medical, or scientific evidence linking the veteran’s current
disorder and claimed in-service radiation exposure. The only
competent evidence of record that deals with the question of
whether the veteran’s posterior subcapsular cataracts are
related to in-service radiation exposure is against the
claim. Therefore, the preponderance of the evidence is
against the veteran’s claim for service connection under
38 C.F.R. § 3.311. Davis, No. 95-1169 (U.S. Vet.App. Apr.
29, 1997); Rucker, 10 Vet.App. at 71.
With respect to the third method to show service connection
for diseases attributable to radiation exposure under
§ 3.303(d) and in accordance with Combee v. Brown,
34 F.3d 1039 (Fed.Cir. 1994), the Court recently held in the
absence of competent medical evidence linking the appellant’s
disabilities to the claimed in-service radiation exposure,
the claim is not well grounded. Davis v. Brown, No. 95-1169
(U.S. Vet.App. Apr. 29, 1997) (finding that the only evidence
of record linking the veteran’s colon and skin cancer to the
claimed in-service radiation exposure was the veteran’s own
contentions). The Board concludes that the veteran’s claim
with respect to the third method, § 3.303(d), is not well
grounded in the absence of competent evidence linking his
cataracts to in-service radiation exposure. Rucker,
10 Vet.App. at 71.
In light of the foregoing, the Board concludes that the
preponderance of evidence is against the veteran’s claim for
service connection for posterior subcapsular cataracts as
secondary to exposure to ionizing radiation. Although the
veteran is entitled to the benefit of the doubt where the
evidence supporting a grant of his claim and the evidence
supporting a denial of his claim are in approximate balance,
the benefit of the doubt doctrine is inapplicable where, as
here, the clear preponderance of evidence is against the
claim. Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1990).
ORDER
Entitlement to service connection for cataracts as secondary
to exposure to ionizing radiation is denied.
WILLIAM J. REDDY
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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